Change to EAD or not?

[meg_z]

Here is my situation. Welcome your comments.

Returned using AP in Nov 07. H-1B is good till 9/2009. My understanding of the Cronin memo is that I am still on H-1b till 2009. But I keep hearing different interpretations even by lawyers. I talked with two lawyers from the firm I retained on different occasions. One said no, one needs to change to EAD after using AP. The other, the owner of the firm, said yes, you are in H-1B status, and do nothing. But her website did say staying on EAD is the safetest bet after suing AP.

I am still with the same employer. My case is straight foward. To ease the concern of H-1B status. I am thinking of switching to EAD. I already have it renewed till 8/09.

So what do you think? Do you see any probelms to change now after so many days since entering with AP? Thanks.

 

[rchandran_19]

Here is my situation. Welcome your comments.

Returned using AP in Nov 07. H-1B is good till 9/2009. My understanding of the Cronin memo is that I am still on H-1b till 2009. But I keep hearing different interpretations even by lawyers. I talked with two lawyers from the firm I retained on different occasions. One said no, one needs to change to EAD after using AP. The other, the owner of the firm, said yes, you are in H-1B status, and do nothing. But her website did say staying on EAD is the safetest bet after suing AP.

I am still with the same employer. My case is straight foward. To ease the concern of H-1B status. I am thinking of switching to EAD. I already have it renewed till 8/09.

So what do you think? Do you see any probelms to change now after so many days since entering with AP? Thanks.

I had the same question in my mind. I want to use AP to travel and I am on H1 status currently. I got lot of response saying that you can continue working on H1 after entering US using AP. So, I think you need not worry.

 

[jk0274]

Here's what the Cronin memo says:

If you enter on AP, you are NOT in H-1B status. However, if you have a valid approved H-1B petition, and return to work for that same employer after entering on AP, then your work will not be illegal even if you don't have EAD. You can regain H-1B status by filing for an H-1B extension.

So bottom line is that you are working legally, but you are not in H-1B status.

 

[mmed]

Here is my situation. Welcome your comments.

Returned using AP in Nov 07. H-1B is good till 9/2009. My understanding of the Cronin memo is that I am still on H-1b till 2009. But I keep hearing different interpretations even by lawyers. I talked with two lawyers from the firm I retained on different occasions. One said no, one needs to change to EAD after using AP. The other, the owner of the firm, said yes, you are in H-1B status, and do nothing. But her website did say staying on EAD is the safetest bet after suing AP.

I am still with the same employer. My case is straight foward. To ease the concern of H-1B status. I am thinking of switching to EAD. I already have it renewed till 8/09.

So what do you think? Do you see any probelms to change now after so many days since entering with AP? Thanks.

To switch from the H to EAD has advantages and disadvantages depending on many variables and differ from person to other. My opinion; if you are in a stable job and your GC application is solid without frank problems just switch to EAD and renew it 120 days in advance before its expiration especially with the new regulation of the 2 year EAD, if any.
If your application is not straightforward with expectation to be denied at any minute (real problems and not paranoia), just keep the H status and do not switch to EAD. This will give you extra room for few months or so in case your I-485 gets denied to find another option for your self while you are in legal status (H).
Keeping H and EAD as backup and may be another GC petition and so on are very good source for USCIS, attorneys, USPS, civil surgeons, …………………etc to secure their jobs and keep their bank accounts obese and you are the only one with no guarantee for anything.
My self when I got the EAD, I used it in the same week and aborted my J visa. The employer tried to sponsor me H visa to avoid any surprises in my pending I-485, I insist to use the EAD without the hassle of the H till I got my GC. Depending on your threshold of tolerability for surprises just decide what you want to do.

 

[meg_z]

Thanks for all the reponses.

Here's what the Cronin memo says:

If you enter on AP, you are NOT in H-1B status. However, if you have a valid approved H-1B petition, and return to work for that same employer after entering on AP, then your work will not be illegal even if you don't have EAD. You can regain H-1B status by filing for an H-1B extension.

So bottom line is that you are working legally, but you are not in H-1B status.

Per your understanding, jk0274, what should the time frame be between entering with AP and filing H-1B extension? I do not think there is a clear answer. For some, their H-1b needs to beextended after the trip anyway. For mine, I do not need to extend it till April 2009. I am not sure if I am fine legally until then. Thanks.

 

[meg_z]

To switch from the H to EAD has advantages and disadvantages depending on many variables and differ from person to other. My opinion; if you are in a stable job and your GC application is solid without frank problems just switch to EAD and renew it 120 days in advance before its expiration especially with the new regulation of the 2 year EAD, if any.
If your application is not straightforward with expectation to be denied at any minute (real problems and not paranoia), just keep the H status and do not switch to EAD. This will give you extra room for few months or so in case your I-485 gets denied to find another option for your self while you are in legal status (H).
Keeping H and EAD as backup and may be another GC petition and so on are very good source for USCIS, attorneys, USPS, civil surgeons, …………………etc to secure their jobs and keep their bank accounts obese and you are the only one with no guarantee for anything.
My self when I got the EAD, I used it in the same week and aborted my J visa. The employer tried to sponsor me H visa to avoid any surprises in my pending I-485, I insist to use the EAD without the hassle of the H till I got my GC. Depending on your threshold of tolerability for surprises just decide what you want to do.

Frankly, after so many years in this waiting game, I do not think I would have any energy left in me to move to a new employer and start this process all over again, should my application get denied. So I do not care much about preserving my H status. I just want to stay/work legally till a decison is made to my applciation. Thanks.

 

[jk0274]

Per your understanding, jk0274, what should the time frame be between entering with AP and filing H-1B extension? I do not think there is a clear answer. For some, their H-1b needs to beextended after the trip anyway. For mine, I do not need to extend it till April 2009. I am not sure if I am fine legally until then. Thanks.

From my understanding, as long as the original petition is valid (the one you were on before you traveled) then you are okay to work for that duration. There is no rule that you have to file the extension within any length of time. But keep in mind that, for example, your dependents are not on H-4 now, and they cannot use H-4 visas to enter... etc. etc.